THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banksin London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordancewith clause 5 (Charges and payment).
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance withclause 11.5.
Contract: the contract between the Supplier and the Customer for the supply of Services inaccordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and theexpression change of control shall be construed accordingly.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in clause 4.2.
Data Protection Legislation: the UK Data Protection Legislation and any other EuropeanUnion legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Material: the information, streaming and media that arise from the delivery of the Services Order: the Customer’s order for Services as set out in the Customer’s written acceptance ofthe Supplier’s quotation.
Services: the services supplied by the Supplier to the Customer as set out in theSpecification.
Specification: the description or specification of the Services provided in writing by theSupplier to the Customer.
Supplier: Red Shell Media Limited t/a Red Shell Productions registered in England and Waleswith company number 08228062.
Supplier Materials: has the meaning set out in clause 4.1.8.
UK Data Protection Legislation: all applicable data protection and privacy legislation in forcefrom time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic CommunicationsDirective 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes email.
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5. Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.
3.1. The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
3.2. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Specification but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3. The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.1. The Customer shall:
4.1.1. ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
4.1.2. co-operate with the Supplier in all matters relating to the Services;
4.1.3. provide (or facilitate the provision to) the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises or third party’s premises, office accommodation and other facilities as reasonably required by the Supplier, for the delivery of the Services;
4.1.4. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
4.1.5. prepare the Customer’s premises (or other third party’s premises if applicable) for the supply of the Services;
4.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
4.1.7. comply with all applicable laws, including health and safety laws;
4.1.8. keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
4.1.9. comply with any additional obligations as set out in the Specification; and
4.1.10. (if pre-agreed with the Supplier) provide broadband of the width pre-agreed with the Supplier to enable the supplier to perform some or all of the Services;
4.1.11. Supply a safe source of electricity; and
4.1.12. Put in place suitable security measures as agreed with the Supplier.
4.2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
4.2.2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
5.1. The Charges for the Services shall be calculated on a time and materials basis and shall be set out in the Specification.
5.2. The Supplier shall invoice the Customer in advance of providing the Services Initial Invoice.
5.3. The Customer shall pay the Initial Invoice submitted by the Supplier as follows:
5.3.1. 30% within 24 hours of the Customer accepting the Supplier Quotation (Deposit); and
5.3.2. 70% (being the balance of the Initial Invoice) no later than 7 days prior to the commencement of the delivery of Services.
5.4. The Deposit shall be non-refundable in any circumstances.
5.5. Any other amounts due from the Customer to the Supplier arising from the delivery of the Services or otherwise shall be paid within 30 days of the date of the invoice.
5.6. If the Customer cancels the Order prior to the agreed date for commencement of the delivery of the Services (Cancellation) the following sums shall be due from the Customer to the Supplier:
5.6.1. If notice of the Cancellation is received by the Supplier more than 7 days prior to the agreed commencement date for the delivery of the Services then the amount due to the Supplier shall be the amount of the Deposit;
5.6.2. If notice of the Cancellation is received by the Supplier less than 7 days but before 3 days prior to the agreed commencement date for the delivery of the Services then the amount due to the Supplier shall be a sum equal to 50% of the Initial Invoice;
5.6.3. If notice of the Cancellation is received by the Supplier less than 3 days prior to the agreed commencement date for the delivery of the Services then the amount due to the Supplier shall be a sum equal to 100% of the Initial Invoice.
5.7. Time for payment shall be of the essence of the Contract and all payments shall be made to the Supplier in full and in cleared funds without deduction.
5.8. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. 5.9. If the Customer fails to make a payment due to the Supplier under the Contract or pursuant to clause 5.5 by the due date, then, without limiting the Supplier’s remedies under clause 9 or otherwise, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.10. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
6.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
6.2. Upon receipt by the Supplier of cleared funds in respect of all invoices delivered by the Supplier in connection with the Services, the Intellectual Property Rights in the Material shall be transferred to the Customer.
6.3. The Customer grants to the Supplier, or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Material for whatever purpose it shall determine (in its sole discretion).
6.4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
7.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 7, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and anyother law that applies in the UK.
8.1. The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000.00 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2. The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3. Neither party may benefit from limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
8.4. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
8.4.1. death or personal injury caused by negligence;
8.4.2. fraud or fraudulent misrepresentation; and
8.4.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
8.5. The Supplier’s total liability to the Customer shall not exceed the total amount due from the Customer to the Supplier for the delivery of the Services.
8.6. This clause 8.6 sets out specific heads of excluded loss:
8.6.2. The following types of loss are wholly excluded:
8.7. The parties agree that the Supplier shall have no liability for any loss or losses incurred by the Customer, and/or the cost of delivery of all or part of the Services due to circumstances beyond its control including:
8.8. the lack (or partial lack) of suitable network availability and/or power supply; and
8.8.1. the actions of any third party that prevent the delivery of the Services, either in whole or part;
8.9. This clause 8 shall survive termination of the Contract.
9.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
9.1.1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
9.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.2.1. the Customer fails to pay any amount due under the Contract on the due date for payment; or
9.2.2. there is a change of control of the Customer.
9.3. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10.1. On termination of the Contract:
10.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2. the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay inperforming, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2. Assignment and other dealings.
11.2.1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
11.2.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract [without the prior written consent of the Supplier].
11.3.1. Subject to the provisions contained in this clause each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.3.2 and clause 11.3.3;
11.3.2. Each party may disclose the other party’s confidential information:
11.3.3. The Client consents to the Supplier using a clients name in any promotional materials, both during and following expiry or termination of the Contract. Such permission shall not extend to any of the Contract details and shall be limited only to the Clients name and no other details.
11.3.4. Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4. Entire agreement.
11.4.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.4.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.4.3. Nothing in this clause shall limit or exclude any liability for fraud.
11.5. Variation. Except as set out in these Conditions, no variation of the Contract shall beeffective unless it is in writing and signed by the parties (or their authorised representatives).
11.6. Waiver. A waiver of any right or remedy under the Contract or by law is only effective ifgiven in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
11.7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal orunenforceable, it shall be deemed modified to the minimum extent necessary to make it
valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or
part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid
first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
11.8.2. Any notice or communication shall be deemed to have been received:
11.8.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9. Third party rights.
11.9.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the
11.9.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
11.11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.